Dialogue Between Nations

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Centro de Recursos Juridicos para los Pueblos Indigenas
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Do Not Accept “Principles of International Law” in PP 15

Do not accept the proposal to limit our right of self-determination

November 28, 2004

The proposal to change preambular paragraph 15 will drastically limit and undermine our right to self-determination, because it would require that we exercise the right of self-determination in “accordance with the principles of international law.” These principles of international law are very bad for indigenous peoples.

Look at these principles of international law. They are not what we want.

Following are some quotations from leading international law experts.

Antonio Cassese is one of the leading experts in this area of law, and he is quoted by some of those who support the proposed language in preambular paragraph 15. In his book Self-Determination of Peoples: A Legal Reappraisal, (1995), he writes:

First of all, States have consistently opposed the formation of any international legal rule granting the right to internal or external self-determination to ethnic or national groups, religious or cultural minorities. On account of the continued prevalence of racism in the international community and the consequent need to fight against it, States have however made allowance for one exception: racial groups living in a sovereign country are entitled to internal self-determination, that is, to be equally represented in the national ruling bodies and therefore to take part in the national decision-making process without suffering any adverse discrimination. (Emphasis added.)

At page 319.

First of all, current international law is blind to the demands of ethnic groups, and national, religious, cultural, or linguistic minorities. Not only does international law refrain from granting any right of internal or external self-determination to these groups, but it also fails to provide any alternative remedy to the present plight of so many of them. ... As for ethnic, religious or linguistic minorities and indigenous populations, they are not protected by customary law at all; only Article 27 of the UN Covenant on Civil and Political Rights takes account of minorities and an ILO Convention (revised in 1989) protects indigenous populations. (Emphasis added.)

At 328-329 (footnotes omitted).

An examination limited to the texts of the Covenants may well lead to the conclusion that minorities are entitled to more than the rights enumerated in Article 27 [cultural rights]. It may, after all, be claimed that the provisions might be cumulative. In other words, minorities might be entitled to the right of political, economic and social self-determination provided for in Article I and the rights provided for in Article 27. The entire body of preparatory work, however, compels the opposite conclusion. ... An examination of the 1951 debates in the Third Committee and the 1952 discussions in the Commission of Human Rights makes it even more clear that the majority of States did not intend ‘peoples’ to encompass minorities. (Emphasis added.)

At pages 61-62 (footnote omitted).

The next issue to be dealt with is that of UN action, or more precisely inaction, on behalf of ethnic groups, such as the Kurds, Armenians, and Basques; indigenous populations, such as the native peoples of Latin America, North America, Australia, and New Zealand; linguistic minorities such as the Quebecois; and religious groups such as the Catholics in Northern Ireland. Here, once again, the UN has remained silent in response to claims asserting the right of self-determination. (Emphasis added.)

At page 103 (footnote omitted).

Another leading expert in this field is Professor Hurst Hannum. Concerning the right of self-determination in Article I of the Covenants, he writes:

Nevertheless, a careful examination of the legislative history of the covenants leads to the conclusion that a restrictive interpretation of the right of self-determination comports with the views of a majority of the states that supported the right. ... Where the majority refuses even to recognize a substantial minority or ethnically distinct nation, and prevents it from sharing in the life of the state, external self-determination or secession may seem like the last hope for those who feel they are treated as aliens in their own country. As discussed above, the rights of such communities as recognized in contemporary international law extend only to guarantees of non-discrimination and equality, to protection of their physical integrity, and to other “individual” human rights. (Emphasis added.)

H. Hannum, Rethinking Self-Determination, 34 Virginia Journal of International Law 1, 23, 64 (1993) (footnotes omitted).

Another prominent authority is Rosalyn Higgins, Professor of International Law, and a former member of the UN Human Rights Committee. The Committee has responsibility for monitoring compliance with the Covenant on Civil and Political Rights. She comes to similar conclusions:

We have seen from the Covenant and from other instruments that it is ‘all peoples’ who are entitled to the right [of self-determination]. But what are we to understand by that? There are really two possibilities – that ‘peoples’ means the entire people of a state, or that ‘peoples’ means all persons comprising distinctive groupings on the basis of race, ethnicity, and perhaps religion.
The emphasis in all the relevant instruments, and in the state practice (by which I mean statements, declarations, positions taken) on the importance of territorial integrity means that ‘peoples’ is to be understood in the sense of all the peoples of a given territory. Of course all members of distinct minority groups are part of the peoples of the territory. In that sense they too, as individuals, are the holders of the right of self-determination. But minorities as such do not have a right of self-determination. That means, in effect, that they have no right to secession, to independence, or to join with comparable groups in other states. (Emphasis added.)

Problems and Process: International Law and How We Use It at page 124 (1994).

In another article, referring to the Covenant on Civil and Political Rights, she wrote:

Further, ‘peoples’ is to be understood as meaning all the people of a State. All the peoples of a State – whether they happen to be members of the majority or members of religious, cultural or ethnic minorities – are entitled together to exercise the right of self-determination. Article 1 gives to all the peoples of a ratifying party the right to determine their own political and economic destiny.
Attempts have been made by certain minorities seeking secession from the State in which the reside to claim that they are a ‘people’ and thus entitled to self-determination. But one right cannot by linguistic sleight of hand be turned into another. It is clear from the Covenant that self-determination and minority rights are two distinct rights, with different beneficiaries. (Emphasis added.)

“Minority Rights: Discrepancies and Divergences Between the International Covenant and the Council of Europe System”, in Lawson et. al, EDS., The Dynamics of the Protection of Human Rights in Europe (Essays in Honor of H. G. Schemer) Vol. III, 195 (1994) at pages 196-197.

She added the following observation about the “tendency” to grant rights to indigenous peoples and the fact that we are “gaining ground” in changing the law:


The second [caveat] is that there is a developing tendency to grant certain rights, increasingly referred to as self-determination rights, to indigenous peoples. Indigenous peoples see their status as other than minorities in their own land. They are ‘first peoples’ and often have a culture and rights closely associated with the land. The UN draft Declaration on Indigenous Rights provides that indigenous peoples have the right to autonomy in respect of a variety of functions traditionally reserved to State structures. A Convention on Indigenous Rights is being prepared but is still some way off; but the concept of autonomy for this special group appears to be gaining ground.

At page 198.

Another scholar who has written extensively in the field is Professor Catherine J. Iorns of Australia. In her article Indigenous Peoples and Self-Determination: Challenging State Sovereignty, 24 Case Western Reserve Journal of International Law 199 (1993), she sought to expose and thus to help overcome the legal barriers to self-determination for indigenous peoples. She states the same conclusion that nearly all scholars have come to:

While the plight and claims of indigenous peoples around the world have increasingly received international attention, particularly over the last ten years, many of the claims of indigenous peoples have to date been rejected and denied. The most prominent of these rejected claims has been the claim by indigenous peoples to self-determination.
Present, positive international law does not recognize a general right of indigenous peoples situated within states to full self-determination. However, the UN Working Group on Indigenous Peoples, which is currently drafting a declaration on the rights of indigenous peoples, appears to be considering the inclusion of such a right. Apart from any effects on indigenous peoples, such a recognition could entail a fundamental change in international law, in international relations, and in the basis of the present world system of states. (Emphasis added.)

These are just a few of the many authorities and scholars who have come to the same conclusions. If the proposal to change pp 15 is accepted, our right of self-determination will be limited to the principles quoted above. That would be a terrible outcome.

Keep in mind, the phrase in the proposal “including the principles in this Declaration” does not help. That phrase only means the “principles of international law” that are contained in the Declaration. A right does not become a principle of international law by being included in the Declaration.

I hope that each delegation will consider this problem and consider leaving pp15 as it is. Inclusion of the proposed language would destroy our efforts to recognize and crystalize a more appropriate and just right of self-determination for indigenous peoples.